Perry v. Leeke

• Decision Date: 05 November 1987
• Docket Number: No. 86-7645,86-7645
• Citation: 832 F.2d 837
• Parties: Donald Ray PERRY, Plaintiff-Appellee, v. William D. LEEKE, Commissioner, South Carolina Department of Corrections; Attorney General of South Carolina, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 837

832 F.2d 837

56 USLW 2296

Donald Ray PERRY, Plaintiff-Appellee, v. William D. LEEKE, Commissioner, South Carolina Department of

Corrections; Attorney General of South Carolina,

Defendant-Appellant.

No. 86-7645.

United States Court of Appeals, Fourth Circuit.

Argued June 1, 1987.

Decided Nov. 5, 1987.

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., for defendant-appellant.

W. Gaston Fairey (Fairey & Parise, P.A., Columbia, S.C. on brief) for plaintiff-appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges, sitting in banc. ^*

WILKINSON, Circuit Judge:

Donald Ray Perry was convicted of murder, kidnapping, and criminal sexual assault. He sought a writ of habeas corpus on the ground that he was not permitted to confer with his counsel during a fifteen minute trial recess between direct and cross-examination. The district court ordered that the writ should issue unless Perry was retried within a reasonable period. Because any error at the state trial did not prejudice Perry under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we reverse the judgment of the district court and remand with directions to dismiss this petition.

I.

On March 5, 1981, Mary Heimberger had dinner with two friends at a restaurant in Richland County, South Carolina. After dinner, she left the restaurant alone in her own car. She was not seen again until March 7, when two boys found her dead body in a wooded area. Donald Ray Perry's fingerprint was later found on Heimberger's car; tire tracks from Perry's car were also found on the scene, as were prints of Perry's shoes. After police arrested Perry, he confessed that he had shot Heimberger, but said it was an accident.

A medical examination of Heimberger's body indicated that someone had raped her, attempted to strangle her, shot her in both kneecaps, and then shot her fatally in the chest. The entrance to her vagina had been bruised and torn. Following Heimberger's death, a large stick had been shoved into her rectum and left there.

Perry's jury trial began on September 21 and ended on October 2. The defense called many witnesses, including Perry himself. On September 29, the trial judge ordered a fifteen minute recess after Perry completed his direct testimony. Perry's counsel sought to speak to him during the recess, apparently to answer a question Perry had and to advise him of his rights on cross-examination. The trial court did not allow the consultation, explaining that Perry "was not entitled to be cured or assisted or helped approaching his cross-examination." Perry's counsel objected, and the objection was overruled.

Perry was convicted. The state of South Carolina sought the death penalty for Perry; the jury recommended a sentence of life imprisonment. On October 5, the trial judge sentenced Perry to life imprisonment for murder, life imprisonment for kidnapping, and thirty years' imprisonment for criminal sexual conduct in the first degree.

Perry argued before the Supreme Court of South Carolina that he had been denied his Sixth Amendment right to counsel because he was not allowed to speak with his lawyer during the fifteen minute recess between direct and cross-examination. The state Supreme Court rejected this argument. Because Perry had been sentenced to life imprisonment for murder, however, that court reversed the sentence for life imprisonment for kidnapping under South Carolina law. State v. Perry, 278 S.C. 490, 299 S.E.2d 324 (1983). The United States Supreme Court denied certiorari. Perry v. South Carolina, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983).

In November of 1985, more than four years after his trial and more than two and one-half years after the denial of certiorari, Perry sought a writ of habeas corpus in federal district court. The district court granted relief on the basis of our earlier decisions in United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), which held that it is always reversible error for a trial court to prevent a defendant and his counsel from conferring during a recess, no matter how brief.

We granted en banc review to determine whether Allen and Stubbs continue to govern in light of the Supreme Court decisions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons expressed in Allen, we believe the bar order at issue here was error. We also believe, however, that the reasoning of Strickland and Cronic mandates reversal only if that error was prejudicial.

II.

We begin by sketching briefly the legal context. The right to counsel is, without question, a fundamental right of criminal defendants. Some interferences with this right pose such a fundamental threat to a fair trial that reversal of a conviction is automatic. Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47 (1984); Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1183, 55 L.Ed.2d 426 (1978); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Not every limitation of the relationship between a defendant and his attorney violates the defendant's right to counsel, however. A trial court is not required, for example, to interrupt trial proceedings whenever a defendant and his attorney express a desire to confer. Moreover, other deprivations at trial, such as ineffective assistance of counsel, do not amount to a denial of the right to counsel requiring automatic reversal of a conviction; such a deprivation constitutes grounds for reversal only if prejudicial. Cronic; Strickland. A barrier to consultation might thus amount to a fundamental denial of the right to counsel, requiring reversal; a lesser deprivation, requiring reversal only if it is prejudicial; or no deprivation at all.

Here we must determine the appropriate treatment of an order barring consultation during a brief, routine recess. The Supreme Court's decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), is the starting point. Geders held that a defendant's right to counsel was violated, requiring automatic reversal, when the trial court prevented him from consulting with his attorney during an overnight recess. The opinion emphasized the importance of an overnight recess, which gives "the defendant a chance to discuss with counsel the significance of the day's events," to make tactical decisions, and to review strategies for the remainder of the trial. Id. at 88, 96 S.Ct. at 1335.

The concurring opinion of Justice Marshall, joined by Justice Brennan, argued that the same rule of automatic reversal was "fully applicable to the analysis of any order barring communication between a defendant and his attorney." Id. at 92, 96 S.Ct. at 1337 (emphasis in original). The opinion of the Court, however, did not go so far. The majority stated that "an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day" was "a matter we emphasize is not before us in this case." Id. at 89 n. 2, 96 S.Ct. at 1336 n. 2. The Court later repeated this caveat:

The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not reach, limitations imposed in other circumstances.

Id. at 91, 96 S.Ct. at 1337.

While there is a division among the circuits, the majority have generally extended the per se reversal rule of Geders to cover lesser restrictions on consultation. The Sixth Circuit has extended Geders to cover a one-hour lunch recess. United States v. Bryant, 545 F.2d 1035 (6th Cir.1976). The Fifth and Eleventh Circuits have held that Geders covers any recess, no matter how brief. Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir.1986) (en banc); United States v. Conway, 632 F.2d 641 (5th Cir.1980). The District of Columbia Circuit and the Eighth Circuit have indicated agreement with this view in dicta. Mudd v. United States, 798 F.2d 1509, 1511 (D.C.Cir.1986); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir.1978). The Second Circuit has rejected this view, however, applying harmless error analysis instead. United States v. DiLapi, 651 F.2d 140, 147-48 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982); United States v. Leighton, 386 F.2d 822 (2d Cir.1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968).

In Allen, a panel of this circuit addressed the issue left open by the majority opinion in Geders and adopted the position of Justice Marshall's concurrence. The panel stated that "a restriction on a defendant's right to consult with his attorney during a brief routine recess is constitutionally impermissible" and that reversal would be necessary whether or not the restriction was prejudicial. 542 F.2d at 634.

Later, in Stubbs, we qualified Allen slightly to require the petitioner "to show that he desired to consult with his attorney, and would have consulted with him but for the restriction placed upon him by the trial judge." 689 F.2d at 1207. Because the defendant in Stubbs had not objected to the restriction and because neither petitioner nor his attorney had requested permission to confer, the habeas petition was denied. In the present case, Perry's counsel objected to the restriction when he learned of it, so the Stubbs requirement has been satisfied.

III.

It is clear that Allen and Stubbs would govern in this case in the absence of the Supreme Court's recent decisions in Strickland and Cronic. The...